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Coulbourne v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

July 14, 2014

BARBARA ANN COULBOURNE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TOMMY E. MILLER, Magistrate Judge.

This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72(b) of the Federal Rules of Civil Procedure, as well as Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia.

Plaintiff Barbara Ann Coulbourne ("Ms. Coulbourne" or "Plaintiff") brought this action under 42 U.S.C. §§ 405(g) and 42 U.S.C. § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act. The undersigned recommends that the decision of the Commissioner be AFFIRMED.

I. PROCEDURAL BACKGROUND

Plaintiff protectively applied for DIB and SSI on January 13, 2011, alleging disability since July 16, 2008, [1] caused by breast cancer in remission, anxiety attacks, and stress. R. 229-32, 253.[2] Plaintiff's applications were denied initially and on reconsideration. R. 153-58, 164-70. Plaintiff requested a hearing by an Administrative Law Judge (ALJ), which occurred on August 16, 2012. R. 40-68. Plaintiff, represented by counsel, testified before the ALJ, along with a vocational expert. R. 40-68.

On September 11, 2012, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. R. 18-31. The Appeals Council denied Plaintiff's request for administrative review of the ALJ's decision. R. 1-4. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481 (2012).

Plaintiff timely filed this action for judicial review pursuant to 42 U.S.C. § 405(g). On December 12, 2013, Plaintiff moved for summary judgment reversing the ALJ's finding that Plaintiff was not disabled and awarding benefits. ECF No. 12. In the alternative, Plaintiff requested remanding the case to the ALJ for further proceedings. ECF No. 13. On January 15, 2014, Defendant filed a cross-motion for summary judgment affirming the decision of the Commissioner that Plaintiff was not disabled under the Act. ECF No. 15. As neither counsel in this case has indicated special circumstances requiring oral argument in this matter, the case is deemed submitted for a decision based on the memoranda.

II. FACTUAL BACKGROUND

Born on September 21, 1964, Plaintiff was forty-six years old on the amended alleged onset date of September 18, 2010, and was almost forty-eight at the time of her administrative hearing and the ALJ's decision. R. 30, 43. Plaintiff finished the seventh grade, and has past relevant work as a cook's helper and as a companion. R. 30, 57-58.

A. Medical Background

Plaintiff was diagnosed with breast cancer in 2008, and underwent treatment, including a modified radical mastectomy, reconstruction, chemotherapy, and radiation, which was completed in June of 2009.[3] R. 418, 479-80, 504, 804. On August 25, 2009, Plaintiff presented to a pain management specialist, Brent R. Fox, M.D., of Delmarva Pain Associates, LLC, complaining of back and leg pain. R. 550. Dr. Fox found no significant findings in his examination of Plaintiff, but diagnosed her with polyneuropathy secondary to chemotherapy and prescribed Savella, Oxycodone, Gabapentin, and a Fentanyl patch, along with a low-impact exercise program. R. 550. Plaintiff continued to present for regular medication management appointments through September 7, 2011. R. 338-45, 656-67. Dr. Fox's examinations generally showed that Plaintiff had normal gait and sensation, normal alignment and range of motion of her cervical spine, and she was in no acute distress. R. 338-45, 656-67. Throughout the course of treating Plaintiff, Dr. Fox prescribed Oxycodone, Morphine Sulphate, Klonopin, MS Contin, Methadone, and Fentanyl patches. R. 338-45, 656-67.

On June 2, 2011, Plaintiff was examined by David Kemp, M.D., of White Stone Family Practice.[4] R. 531, 899. Dr. Kemp indicated that Plaintiff had chronic pain syndrome possibly residual to her cancer treatments, and at that appointment complained of pain under her right scapula. R. 531, 899. He also opined that she appeared to be "significantly depressed throughout the encounter, " but had found many antidepressant drugs to be "unacceptable due to side effects." R. 531, 899. He noted that Plaintiff was receiving "large doses of opiates" from her pain management specialist. R. 531, 899. Plaintiff's physical examination was unremarkable, except for a "tenderness to direct palpitation" over Plaintiff's right scapula and rhomboid. R. 532, 900. Dr. Kemp recommended a bone scan, which showed mild scoliosis of the thoracolumbar spine and increased activity involving Plaintiff's shoulder, hip, knee, ankle, elbow and wrist joints bilaterally, with some associated mild degenerative changes. R. 532, 535, 900.

Plaintiff continued to attend regular physical examinations with Dr. Kemp and Physician's Assistant Pruitt, along with Keith Cubbage, M.D., all of White Stone Family Practice. R. 612-36. The examinations showed normal gait and station, good range of motion, and no acute distress. R. 613, 615-16, 622, 625, 628, 631, 634, 636. Plaintiff did show some signs of depressive symptoms and panic attacks, which Dr. Kemp attempted to treat. R. 612-636. Panic attacks were first assessed on July 5, 2011, and Physician's Assistant Pruitt also assessed Plaintiff's depression as deteriorated. R. 634, 893. However, she denied memory loss, mental disturbance, suicidal ideation, hallucinations, and paranoia. R. 633, 892. On July 7, 2011, Dr. Kemp assessed Plaintiff's panic attacks as deteriorated. R. 631, 890. However, on July 13, Physician's Assistant Pruitt stated that Plaintiff's mood and affect were appropriate. R. 628, 887. On August 25, 2011, Dr. Kemp noted that Plaintiff's affect is "one of depression." R. 612, 871. He stated that Plaintiff had been "leary" of antidepressant medication, but that he and Physician's Assistant Pruitt convinced Plaintiff to try Abilify. R. 612-13, 871-72.

On July 27, 2011, Plaintiff was evaluated by Robin J. Lewis, Ph.D., for the Virginia Department of Rehabilitative Services. R. 607-11. Dr. Lewis noted that Plaintiff complained of depression and panic attacks, and problems sitting and standing. R. 607. Plaintiff also stated that she did not have problems with depression or panic attacks before her breast cancer diagnosis and treatment, and that she dislikes antidepressant medications because they make her "mean" and increase her mood swings. R. 608. Dr. Lewis stated that Plaintiff and her husband were both out of work, and that they were concerned about their financial and living situation. R. 608. Plaintiff also did not do activities she used to enjoy, like boating and seeing friends, and did not do housework or cook. R. 608. Plaintiff's adult son had recurrent legal troubles. R. 608. Plaintiff also denied both smoking and drinking to Dr. Lewis, but upon further questioning admitted she still did both, but had not been drinking as much lately because she could not afford it. R. 608.

Dr. Lewis's examination revealed that Plaintiff was in obvious discomfort and distress. R. 609. Plaintiff reported dysphoria, had little appetite, and had poor sleep. R. 609. Plaintiff admitted to thinking about suicide, but stated that she did not have an active plan to do so. R. 609. She worried about her husband and his health and safety, because he was her primary caretaker, and she worried especially when he left for periods of time. R. 609. She had difficulty with cognitive processing, like counting backwards by single digits, doing basic math, and spelling a simple word backwards. R. 609. Dr. Lewis assessed Plaintiff's psychological insight and judgment as fair, despite her extreme fatigue and forgetfulness. R. 609. Dr. Lewis also discussed Plaintiff's tearfulness and worries about her health, her pain, and her financial situation. R. 609. Dr. Lewis described Plaintiff's fund of information as "quite low" and her intellectual functioning as "below average, " citing Plaintiff's lack of knowledge of current events, or the state capital of Virginia. R. 609-10. Dr. Lewis assessed Plaintiff as suffering from severe depression with vegetative signs such as fatigue, poor sleep and appetite, low energy, and loss of libido. R. 610. Dr. Lewis diagnosed Plaintiff with major depressive disorder, severe, [5] with a current GAF of 35-40. R. 610. Dr. Lewis also assessed Plaintiff and her husband's credibility, stating that they "seemed to provide accurate information consistent with medical records and consistent with presentation." R. 610. Dr. Lewis indicated that, as of the evaluation, Plaintiff "would be unable to do detailed and complex tasks, " and that "[e]ven simple and repetitive tasks would be a challenge given her poor concentration, limited intellect and chronic pain." R. 611. Dr. Lewis also stated that Plaintiff's attendance and consistency would be poor, and she would be unlikely to do anything without additional supervision or support. R. 611. Plaintiff also might have difficulties following direction, interacting with others, or dealing with stress. R. 611.

Plaintiff continued to see Dr. Kemp for follow-up appointments. R. 812-70. On December 29, 2011, Dr. Kemp noted that Dr. Fox, Plaintiff's pain management specialist, had "lost his ability to prescribe controlled drugs." R. 723, 858. He expressed concern that Plaintiff might go through withdrawal from opiates and encouraged Plaintiff to seek inpatient detoxification. R. 723-24, 858-59. Plaintiff declined, and chose to do so at home. R. 724, 726. However, on January 2, 2012, Plaintiff presented to Riverside Shore Memorial Hospital for opiate withdrawal. R. 755-58. She was discharged on January 4, 2012, in stable condition and with discharge diagnoses of opiate withdrawal, narcotic dependence, chronic pain, nausea, and diarrhea. R. 759-61, 809-11. Plaintiff returned to see Dr. Kemp on January 12, 2012. R. 727-28, 855-57. He reported that she was no longer taking narcotic pain medication, but was taking "very large doses" of gabapentin and tramadol for her pain. R. 727.

On February 23, 2012, Plaintiff underwent surgical revision of her scar tissue from her breast reconstruction. R. 738-44, 936-51. After the surgery she was placed on narcotic pain killers again. R. 736. On March 9, 2012, a follow-up report post-surgery indicated that Plaintiff was "off most of her analgesic[]" medication, and that she was "perhaps" experiencing some withdrawal symptoms. R. 745. Plaintiff saw Dr. Cubbage on March 14, 2012, and requested that she be able to continue on the narcotic medication. R. 749. Dr. Cubbage declined to refill Plaintiff's narcotics prescriptions, citing her past history with narcotics and his belief that her achiness is from minor withdrawal. R. 751.

On March 27, 2012, Plaintiff was admitted to Penninsula Regional Medical Center after a suicidal overdose on medication. R. 765. Plaintiff claimed that she "had not been given enough oxycodone following the surgery, " and admitted to having purchased a pill of oxycodone off the street "about a day before her overdose." R. 767. Plaintiff also discussed her history of bad reactions to antidepressant medications, and admitted that, as a teenager, she cut herself and had suicidal thoughts. R. 767. Plaintiff denied suicidal and homicidal ideations during an examination, and was given a GAF of 25 at her initial examination on March 27, 2012. Plaintiff was placed on opiate withdrawal protocol and benzotriazapine withdrawal protocol, and was started on Celexa and trazodone. R. 768. Plaintiff was discharged on April 3, 2012, at which time she denied suicidal or homicidal ideations. R. 765. She was diagnosed with major depressive disorder, moderate; opioid dependence; and continuous alcohol dependence, episodic for Axis I, borderline personality disorder for Axis II, and a GAF score of 65 on discharge. R. 765.

After her release, Plaintiff followed up with Dr. Kemp at regular intervals, with records starting on April 19, 2012. R. 822-38. On May 4, 2012, Dr. Kemp noted that he was at a loss as to Plaintiff's treatment, stating that, despite the previous detoxification, Plaintiff was "worse off than ever." R. 825. He opined her pain was likely partially due to depression, but that he was reluctant to try antipsychotic drugs. R. 825. On May 17, 2012, Dr. Kemp noted that she was seen riding her bicycle around that time, which he considered to be a good sign. R. 822. On June 14, 2012, Dr. Kemp noticed a patch on Plaintiff's left thigh, which she claimed was a cigarette deterrent. R. 812. Dr. Kemp noted that he was suspicious that it was instead a Fentanyl patch, and also stated that Plaintiff admitted to taking the occasional Percocet, which she purchased "off the street." R. 812-13. Dr. Kemp's treatment notes indicated that he was "very concerned that the number and varieties of medications [Plaintiff] uses exceeds what [he has] prescribed." R. 813.

On July 6, 2012, Dr. Kemp filled out a Post Cancer Treatment Medical Source Statement. R. 951-54. In it, he described Plaintiff's prognosis as "guarded, " stating that she had a chronic burning pain on the site of her breast reconstruction. R. 951. He indicated that she could occasionally lift twenty pounds and stoop, crouch/squat, and climb stairs, but that she could rarely twist and never climb ladders. R. 952. He also noted that Plaintiff could reach in front of her body or overhead for only ten percent of an eight-hour workday, and that she was likely to be off-task for twenty-five percent of a workday or more. R. 952. He indicated she could walk four city blocks without stopping, could sit for more than two hours at a time, but could only stand for thirty minutes at a time. R. 953. He also marked that in an eight-hour workday, Plaintiff could stand/walk for less than two hours, and sit for approximately four hours. R. 953. He indicated that Plaintiff could not work an eight-hour workday, and estimated that she would only be able to work approximately ten hours per week. R. 953. Dr. Kemp also noted that Plaintiff would need the ability to shift positions between sitting, standing and walking at will, and that she would need more than ten unscheduled breaks during the workday that could last approximately thirty minutes. R. 953. He indicated that she was incapable of even "low stress" work, and that she would likely need to be absent from work more than four days per month. R. 954.

On July 27, 2012, Plaintiff was admitted to Tangier Health Center "under the auspices of a temporary detaining order obtained from the Accomack courts, " for leaving a voicemail on her husband's phone in which she threatened to kill herself. R. 969. Plaintiff apparently denied the use of alcohol, drugs, or abusing over-the-counter medication. R. 969-970. She was diagnosed with major depressive disorder, recurrent, without psychosis, severe, and given a GAF score of 35. The record ...


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